Filed 11/23/20 Marriage of Cunningham CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of JENNIFER 2d Civil No. B301683
and JOHN PAUL (Super. Ct. No. D372438)
CUNNINGHAM. (Ventura County)
JENNIFER CUNNINGHAM,
Appellant,
v.
JOHN PAUL CUNNINGHAM,
Respondent.
Jennifer Cunningham appeals from the judgment
and various postjudgment orders entered in her dissolution
action against John Paul Cunningham.1 Jennifer contends the
trial court erred when it: (1) denied her challenges to its
statement of decision, (2) imputed income to her, (3) awarded
1 We use the parties’ first names for clarity.
sanctions against her, (4) denied her request for attorney fees,
and (5) did not order the full amount of sanctions against John
that she requested. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Jennifer and John were married in 1997, and
separated in 2015. In the weeks leading up to the trial of their
dissolution action, Jennifer requested John’s financial disclosures
several times. John filed his trial brief, witness list, and final
declaration of disclosure two days before trial.
On the second day of trial, Jennifer and John signed
a settlement agreement regarding custody of their four children.
The next morning they signed an agreement regarding financial
matters. John’s vocational expert, Phillip Sidlow, testified that
afternoon. Sidlow said that, despite her various disabilities,
Jennifer could be earning $60,000 within six months if she made
a “concentrated effort at finding employment.” He also testified
about employment opportunities available to persons, like
Jennifer, who received Social Security disability payments.
Jennifer testified about her child support needs on
the last day of trial. During her testimony, the trial court asked
if she was employed. Jennifer said that she was not because she
was disabled. The court asked if she had sought employment at
any point during the proceedings. Jennifer replied that she had
not.
In its tentative ruling, the trial court relied on
Sidlow’s testimony to impute $60,000 in annual income to
Jennifer. It also ordered John to pay $838 in child support and
$2,000 in spousal support each month. The court awarded
Jennifer $8,000 in attorney fees, and ordered her to pay an
$8,000 sanction because she “raised many issues for which she
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ultimately had no legal basis or evidentiary support, and refused
to settle issues except . . . when it became evident that she could
not sustain her burden going forward on a particular allegation,
contention, or position.”
Jennifer objected to the trial court’s decisions to
impute income to her and order sanctions. She argued that the
Social Security Administration had determined that she was
disabled. She also argued that she had not filed any frivolous
pleadings. The court overruled the objections, and adopted the
tentative ruling as its statement of decision.
Jennifer challenged the statement of decision based
on John’s alleged fraud, perjury, and failure to comply with
disclosure requirements. As to the first two of these bases,
Jennifer claimed that John did not remit the required percentage
of a $15,000 bonus he had received, which gave him an unfair
advantage at trial. As to the third, she claimed that John filed
documents on the eve of trial, which prevented her from
challenging his expert’s testimony. She also complained that
John never filed a final income and expense disclosure and did
not comply with service requirements. She requested that the
trial court impose a $165,000 sanction against him.
The trial court denied most of Jennifer’s challenges.
Though John failed to file an income and expense declaration
immediately prior to trial, he filed two similar declarations
earlier in the proceedings. He also served Jennifer with a final
declaration of disclosure two days before trial. But because John
concealed a bonus he received, he was required to pay a portion of
it to Jennifer as spousal support. He also had to pay a $5,000
sanction for his concealment.
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The trial court adopted its statement of decision as
the final judgment. Jennifer moved for needs-based attorney fees
the following month, citing the $20,000 disparity between her
monthly income and John’s. The court said that it was “happy to
seriously consider” Jennifer’s motion, but she needed to show
that she had an attorney willing to accept her case before it
would order John to pay attorney fees. The court denied
Jennifer’s motion without prejudice.
Jennifer thereafter renewed her request for sanctions
against John, claiming that the trial court’s imposition of a
$5,000 sanction for the concealment of his bonus did not moot her
request. The court declined her request to impose additional
sanctions.
DISCUSSION
Challenges to the trial court’s statement of decision
Jennifer contends the trial court erroneously denied
her challenges to the statement of decision because: (1) John’s
failure to timely file documents prevented her from fully
participating in trial, and (2) John’s concealment of his $15,000
bonus constituted fraud and perjury. We disagree.
The trial court in a dissolution action may set aside
all or part of the judgment in limited circumstances, such as upon
proof of fraud, perjury, or failure to comply with disclosure
requirements. (Fam. Code,2 § 2122, subds. (a), (b), & (f).) The
court has broad discretion in deciding whether to set aside a
judgment pursuant to section 2122. (In re Marriage of Varner
(1997) 55 Cal.App.4th 128, 138.) Reversal is unwarranted if an
appellant “‘presents a state of facts [that] merely affords an
2 Further statutory references are to the Family Code.
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opportunity for a difference of opinion.’” (Ibid., alterations
omitted.)
The trial court did not abuse its discretion here.
Jennifer claims that John’s late service of his trial brief, witness
list, and final declaration of disclosure prevented her from fully
participating in the first three days of trial. But John served her
with these documents two days before trial. Jennifer does not
explain why she did not review the documents upon receipt,
despite having them in her possession. The prejudice she claims
stems from her own actions, not John’s.
Jennifer also fails to show that John prejudiced her
by concealing his $15,000 bonus. She claims that she could have
used her portion of the bonus to prepare for trial. But she does
not explain how she would have done so, nor does she provide any
evidence to support this claim. The trial court thus acted well
within its discretion when it denied Jennifer’s challenges to the
statement of decision.
Imputed income
Jennifer next contends the judgment should be
reversed because the trial court erred when it imputed income to
her for purposes of calculating child support payments. She is
wrong.
The parties to a dissolution action may be ordered to
pay child support. (See § 3900 et seq.) “A crucial component for
determining the amount of child support is, of course, each
[party’s] income.” (In re Marriage of Destein (2001) 91
Cal.App.4th 1385, 1391 (Destein).) “Income” is broadly defined,
and may include a party’s actual income as well as their earning
capacity. (Ibid.; see § 4058, subds. (a) & (b).)
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We review the trial court’s decision to impute income
to Jennifer for abuse of discretion. (Destein, supra, 91
Cal.App.4th at p. 1393.) When applying this standard, we review
the court’s factual findings for substantial evidence and its
conclusions of law de novo. (In re Marriage of Lim &
Carrasco (2013) 214 Cal.App.4th 768, 774 (Lim & Carrasco).) We
will not substitute our judgment for that of the court below if a
reasonable judge could have reached the same decision.
(Destein, at p. 1393.)
There was no abuse of discretion here. When
imputing income to Jennifer, the trial court relied on Sidlow’s
testimony about her earning potential and the employment
opportunities available to persons with disabilities similar to
hers. Jennifer does not substantively challenge that testimony.
Instead, she argues that the trial court “ignored” all of the
evidence she provided regarding her disabilities and earning
potential. But such a factual dispute is best resolved at trial, not
on appeal. (Destein, supra, 91 Cal.App.4th at p. 1393.) Because
substantial evidence supports the trial court’s decision, we must
uphold it. (Lim & Carrasco, supra, 214 Cal.App.4th at p. 774.)
Sanctions against Jennifer
Next, Jennifer contends the judgment should be
reversed because the trial court erroneously ordered her to pay a
$8,000 attorney fee sanction to John. We are not persuaded.
If a party to a dissolution action frustrates settlement
or otherwise increases the cost of litigation, the trial court may
order that party to pay the other party’s attorney fees. (§ 271,
subd. (a).) But the court must first provide notice of the proposed
sanctions and an opportunity to be heard. (Id., subd. (b); see also
In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510,
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513.) We review the imposition of an attorney fee sanction for
abuse of discretion. (In re Marriage of Falcone & Fyke (2008) 164
Cal.App.4th 814, 828 (Falcone & Fyke).)
Jennifer challenges the $8,000 attorney fee sanction
based on the trial court’s alleged failure to provide her with
notice of the proposed sanction and the opportunity to be heard.
But the court first raised the issue in its October 2018 tentative
ruling. Jennifer objected to that ruling the following month,
specifically challenging the proposed sanctions against her. That
the court overruled Jennifer’s objection when it adopted the
tentative ruling as its statement of decision nine months later
does not show that it failed to provide her with notice and an
opportunity to be heard. There was no abuse of discretion.
Motion for attorney fees
Jennifer next argues the trial court erred when it
refused her request for needs-based attorney fees. There was no
error.
Pursuant to sections 2030 and 2032, a trial court
“‘may award attorney fees and costs “between the parties based
on their relative circumstances in order to ensure parity of legal
representation in the action.” [Citation.]’” (In re Marriage of
McLain (2017) 7 Cal.App.5th 262, 272.) But before it grants an
attorney fee request, the court “must have some evidence that the
moving party needs the money.” (Falcone & Fyke, supra, 164
Cal.App.4th at p. 824.) “‘The burden of establishing such
necessity is upon the [moving party].’ [Citation.]” (Ibid.) We
review a decision to deny an attorney fee motion for abuse of
discretion. (In re Marriage of Smith (2015) 242 Cal.App.4th 529,
532.)
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Jennifer has forfeited her contention because she did
not renew her motion for attorney fees after the trial court denied
it without prejudice. (People v. Mills (2010) 48 Cal.4th 158, 170.)
Even if she had not forfeited the issue, we would find no error
because she did not show that she sought the assistance of an
attorney. Without that showing, Jennifer did not carry her
burden of establishing that she needed money to pay counsel.
There was thus no abuse of discretion.
Request for sanctions against John
Finally, Jennifer contends the trial court erred when
it denied her request for $165,000 in sanctions against John. We
again disagree.
The basis for Jennifer’s contention appears to be that
the trial court should have decided her sanctions request
separately from her challenge to its statement of decision. But
she provides no evidentiary or legal support for why the court
was required to do so. She has thus failed to show an abuse of
discretion. (Falcone & Fyke, supra, 164 Cal.App.4th at p. 828.)
DISPOSITION
The judgment is affirmed. The trial court’s denial of
Jennifer’s postjudgment motion for needs-based attorney fees,
entered September 24, 2019, is affirmed. The denial of her
request for additional sanctions against John, entered October 1,
2019, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. YEGAN, J.
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John R. Smiley, Judge
Superior Court County of Ventura
______________________________
Jennifer Cunningham, in pro. per., for Appellant.
No appearance for Respondent.